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HomeMy WebLinkAbout93-528 MarlesSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 22, 1993 Blake C. Marles, Esquire 93 -528 Weaver, Mosebach, Piosa, Hixson & Marles One Windsor Plaza, Suite A -200 7535 Windsor Drive Allentown, PA 18195 -1014 Re: Conflict, Public Official /Employee, Borough, Mayor, Gratuities, Performance of Marriages. Dear Mr. Marles: This responds to your letter of February 16, 1993, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a borough mayor with regard to gratuities for performing marriages. Facts: As counsel for a client who serves as a mayor for a Pennsylvania borough, you request an advisory from the State Ethics Commission. You state that under Pennsylvania law, your client, as Mayor, is authorized to, among other things, perform civil marriage ceremonies. On behalf of your client, you inquire as to whether the acceptance of a gratuity from a couple your client has married is lawful under the Ethics Law. You indicate your belief that since it is your client's public office that authorizes him to perform civil ceremonies, the question is appropriate. However, you are uncertain as to the answer since the actions which your client undertakes in performing a civil ceremony are not necessarily part of his customary public function. Based upon the above, you request an advisory from the State Ethics Commission. Discussion: As a Mayor for a Pennsylvania borough, your client is a public official as that term is defined under the Ethics Law, and hence he is subject to the provisions of that law. Blake C. Marles, Esquire March 22, 1993 Page 2 Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official - or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary-benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having .a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official :or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. In applying the above provisions of the Ethics Law to the circumstances which you have submitted, pursuant to Section 3(a) of Blake C. Marles, Esquire March 22, 1993 Page 3 the Ethics Law, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which ,he or a member Hof his immediate family is associated. The question of a mayor receiving gratuities for performing -marriages :,has previously been considered by the State Ethics Commission in Costello, Order No. 724. The Commission noted that the Ethics Law does not prohibit an official from receiving gifts, and held that the totality of the circumstances did not indicate that such payments to Mr. Costello constituted compensation for services rendered or were specifically obtained through the use of his public office. Based upon the above, the Commission found no violation of the State Ethics -Act in relation to Costello's acceptance of such gratuities. However, the Commission did note that gifts, if in excess of $200.00 from an individual source are required to be reported on the annual Statement of Financial Interests. The above principles . set forth in Costello, Order No. 724, would continue to be applicable under Act 9 of 1989. Therefore, the Ethics Law would not preclude your client as a Mayor for a Pennsylvania borough from accepting gratuities for performing marriages. However, in the event such a gift from a source would meet or exceed the $200.00 .threshold for reporting gifts, such would be—required3 to be disclosed on the annual Statement of Financial Interests. . The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code, of conduct other than the Ethics Law has not been considered in :that they do not involve an interpretation of the Ethics 1,aw. Specifically not addressed herein is the applicability of the Borough Code. Conclusion: As a Mayor for a Pennsylvania borough, your client is a public official subject to the provisions of the Ethics Law. The Ethics Law would not preclude your client as a Mayor for a Pennsylvania borough from accepting gratuities for performing marriages. However, in the event such a gift from a source would meet or exceed the $200. 00 threshold for reporting gifts, such would be required. tQ be disclosed on the _annual Statement of Financial Interests. Lastly, the propriety of the proposed .;conduct has only (been addressed under the Ethics Law. `Pursuant to Section 7(11), this Advice is a - complete defense in any enforc=ement proceeding initiated by the Commission, and evidence :lot good faith conduct in any other civil or criminal Blake C. Marles, Esquire March 22, 1993 Page 4 proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Fi.inally, if you disagree with this Advice or if you have any treason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be -scheduled and a formal Opinion from the Commission will be Issued. - - ?1ny such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, Vincent . Kopko Chief Counsel 11.44.0.